UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
14A INFORMATION
Proxy
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Definitive Proxy Statement |
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Definitive Additional Materials |
Soliciting
Material under §240.14a-12
OXYSURE
THERAPEUTICS, INC.
(Name of Registrant as Specified In Its Charter)
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OXYSURE
THERAPEUTICS, INC.
10880
John W. Elliott Drive, Suite 600
Frisco,
TX 75033
(972)
294-6450
February
26, 2016
To
the Stockholders of OxySure Therapeutics, Inc.:
A
Special Meeting of Stockholders of OxySure Therapeutics, Inc. will be held on April [ ], 2016, at [
] local time at the principal executive offices of OxySure Therapeutics, Inc., located at 10880 John W. Elliott Drive,
Suite 600, Frisco, TX 75033.
Details
of the business to be conducted at the Special Meeting are provided in the enclosed Notice of Special Meeting of Stockholders
and the Proxy Statement, which you are urged to read carefully.
On
behalf of the Board of Directors, I cordially invite all stockholders to attend the Special Meeting. It is important that your
shares be voted on the matters scheduled to come before the Special Meeting. Whether or not you plan to attend the Special Meeting,
I urge you to vote your shares. For your convenience, we are providing four ways in which you may vote your shares: (1) by Internet,
at https://www.iproxydirect.com/OXYS and using the control number located on your proxy card; (2) by touch-tone telephone, by
dialing the toll-free telephone number located on the proxy card and following the instructions; (3) by facsimile, by completing
the reverse portion of the proxy card and faxing to the number provided on the proxy card; or (4) by mail, by returning your executed
proxy in the enclosed postage paid envelope. If you attend the Special Meeting, you may revoke such proxy and vote in person if
you wish. Even if you do not attend the Special Meeting, you may revoke such proxy at any time prior to the Special Meeting by
executing another proxy bearing a later date or providing written notice of such revocation to the Corporate Secretary of the
Company.
OXYSURE
THERAPEUTICS, INC.
| /s/
Julian T. Ross |
|
| Name: |
Julian
T. Ross |
|
| Title: |
Chairman, Chief Executive Officer, President and Secretary |
Important
Notice Regarding the Availability of Proxy Materials for the Special Meeting of Stockholders to be Held on April [ ],
2016: In accordance with the rules and regulations adopted by the U.S. Securities and Exchange Commission (“SEC”),
we are providing access to our proxy materials, including the proxy statement and a form of proxy relating to the Special Meeting,
over the Internet. All stockholders of record and beneficial owners will have the ability to access the proxy materials at https://www.iproxydirect.com/OXYS.
These proxy materials are available free of charge.
OXYSURE
THERAPEUTICS, INC.
10880
John W. Elliott Drive, Suite 600
Frisco,
TX 75033
(972)
294-6450
NOTICE
OF SPECIAL MEETING OF STOCKHOLDERS
A
special meeting (the “Meeting”) of the stockholders of OxySure Therapeutics, Inc. (the “Company,” “we,”
“us” or “our”), a Delaware corporation, will be held on April [ ], 2016 at [
] local time at the Company’s principal executive offices, located at 10880 John W. Elliott Drive, Suite 600, Frisco,
TX 75033, for the following purpose:
To
authorize one or more amendments to the Company’s Articles of Incorporation to effect one or more reverse stock splits of
our common stock, par value $0.0004, at specific ratios, the cumulative ratio to be within a range of 1-for-2 and 1-for-100 shares,
to be determined by our Board of Directors in its sole discretion and effected, if at all, no later than September 14, 2016.
Stockholders
of record as of the close of business on February 19, 2016 are entitled to notice of and to vote at the Meeting or any adjournments
thereof. Your attention is called to the Proxy Statement on the following pages. Please review it carefully. We hope you will
attend the Meeting.
WHETHER
OR NOT YOU EXPECT TO BE PRESENT AT THE MEETING, YOU ARE URGED TO MARK, SIGN, DATE, AND RETURN THE ENCLOSED PROXY AS PROMPTLY AS
POSSIBLE IN THE POSTAGE-PREPAID ENVELOPE ENCLOSED FOR THAT PURPOSE TO ASSURE YOUR REPRESENTATION AT THE MEETING. YOU ALSO MAY
SUBMIT YOUR PROXY BY FAX OR BY CALLING THE TOLL-FREE NUMBER SHOWN ON YOUR PROXY CARD OR BY VISITING THE INTERNET WEBSITE ADDRESS
SHOWN ON YOUR PROXY CARD. IF YOU ATTEND THE MEETING, YOU MAY REVOKE YOUR PROXY AND VOTE IN PERSON. PLEASE HAVE YOUR SHARES VOTED:
By
Internet. Visit https://www.iproxydirect.com/OXYS and enter the control number located on your proxy card.
By
Touch-Tone Telephone. Dial the toll-free number found on your proxy card and follow the simple instructions.
By
Facsimile. Complete the reverse portion of the proxy card and fax to the number found on your proxy card.
By
Mail. Simply return your executed proxy in the enclosed postage paid envelope.
THE
PROXY IS REVOCABLE AT ANY TIME PRIOR TO ITS USE.
For
more instructions, please see the Questions and Answers beginning on page 1 of this Proxy Statement and the instructions on the
attached proxy card.
By
Order of the Board of Directors,
| /s/
Julian T. Ross |
|
| Name: |
Julian
T. Ross |
|
| Title: |
Chairman,
Chief Executive Officer, President and Chief Financial Officer |
February
[ ], 2016
PROXY
STATEMENT
This
Proxy Statement and the accompanying proxy card are first being mailed on or about March [ ], 2016 to holders of record
of the common stock, par value $0.0004 per share (“Common Stock”), of OxySure Therapeutics, Inc., a Delaware
corporation (the “Company”), as of the close of business on February 19, 2016 (the “Record Date”), in
connection with the solicitation of proxies by the Board of Directors of the Company (the “Board”) for use at a
special meeting of the stockholders of the Company (the “Meeting”) to be held at the Company’s principal
executive offices, located at 10880 John W. Elliott Drive, Suite 600, Frisco, TX 75033, on April [ ], 2016 at [
] local time. You are invited to attend the Meeting and are requested to vote on the proposal described in this
Proxy Statement.
QUESTIONS
AND ANSWERS ABOUT THIS
PROXY
MATERIAL AND THE MEETING
These
questions do not, and are not intended to, address all the questions that may be important to you. You should carefully read the
entire Proxy Statement, as well as any documents incorporated by reference in this Proxy Statement.
What
information is contained in these materials?
The
information included in this Proxy Statement relates to the proposal to be voted on at the Meeting, the voting process, the security
ownership of certain beneficial owners and management, and certain other required information.
On
what matters am I voting?
Our
Board seeks stockholder approval for the proposal to amend our Articles of Incorporation to effect one or more reverse stock splits
of the Company's issued and outstanding Common Stock at specific ratios, the cumulative ratio to be within a range of 1-for-2
and 1-for-100 shares, to be determined by the Board in its sole discretion, and effected, if at all, no later than September 14,
2016 (the “Proposed Split” and each, a “Reverse Split”). The Proposed Split, if approved by stockholders,
would occur, if at all, by incorporating the reverse stock split approved by stockholders at the special meeting held on September
15, 2015. See “Proposal ― Amendment to the Company’s Articles of Incorporation to Effectuate the Reverse Stock
Split ― The Reverse Stock Split.”
The
stockholders will also transact any other business that properly comes before the Meeting.
What
is our Board’s voting recommendation?
Our
Board recommends that you vote FOR the proposal to approve the amendment(s) to our Articles of Incorporation to effect the Proposed
Split.
Who
can vote at the Meeting?
You
are entitled to vote at the Meeting if you owned shares of our Common Stock at the close of business on February 19, 2016, the
record date for determining stockholders entitled to notice of and to vote at the Special Meeting. You will have one vote for
each share of our Common Stock that you owned on the Record Date. As of the Record Date, there were 40,405,496 shares of our Common
Stock outstanding and entitled to vote at the Meeting. The presence in person or by proxy of the holders of a majority of the
outstanding shares of Common Stock as of the Record Date, or 20,202,749 shares, will constitute a quorum for purposes of conducting
business at the Meeting. If you fail both to attend the Meeting in person and to submit a proxy, the effect will be that your
shares will not be counted for purposes of determining whether a quorum is present at the Meeting.
How
do I vote?
You
may vote your shares of Common Stock either by proxy or in person at the Meeting (please also see the detailed instructions on
your proxy card). Each such share is entitled to one vote on each matter submitted to a vote at the Meeting. To vote by proxy,
you may (1) use the Internet and the control number located on your proxy card to vote at https://www.iproxydirect.com/OXYS; (2)
dial the toll-free telephone number found on your proxy card and follow the simple instructions; (3) complete the reverse portion
of the proxy card and fax it to the number provided on the proxy card; or (4) complete, sign and mail the enclosed proxy card
in the envelope provided, which requires no postage for mailing in the United States. Proxies in the form enclosed are being solicited
by our Board for use at the Meeting.
If
a proxy specifies how your shares are to be voted, it will be voted in the manner specified. If you return a signed proxy card
but do not provide voting instructions, your shares will be voted FOR approval of the proposal in accordance with the recommendation
of our Board. In the absence of a Board recommendation with respect to any other matter that is properly brought before the Meeting
for action by stockholders, your shares will be voted in accordance with the judgment of the proxy holder.
May
I revoke my proxy?
As
a holder of record of shares of our Common Stock, you may revoke your proxy and change your vote at any time prior to the Meeting
by giving written notice of your revocation to our Secretary, by signing another proxy card with a later date and submitting the
later dated proxy to our Secretary before or at the Meeting, or by voting in person at the Meeting. Please note that your attendance
at the Meeting will not constitute a revocation of your proxy unless you actually vote at the Meeting. Giving a proxy will not
affect your right to change your vote if you attend the Meeting and want to vote in person. We will distribute written ballots
to any holder of record of our shares who wants to vote at the Meeting.
Any
written notice of revocation or subsequent proxy should be sent to OxySure Therapeutics, Inc., Attention: Secretary, 10880 John
W. Elliott Drive, Suite 600, Frisco, TX 75033, or hand delivered in person before the voting at the Meeting.
What
does it mean if I receive more than one proxy card?
If
your shares are registered differently or are held in more than one account, you will receive more than one proxy card. Please
sign and return all proxy cards to ensure that all of your shares are voted.
Will
my shares be voted if I do not sign and return my proxy card?
If
you are the record holder of your shares and do not return your proxy card, your shares will not be voted unless you attend the
Meeting in person and vote your shares.
What
is a quorum and what constitutes a quorum?
A
“quorum” is the number of shares that must be present, in person or by proxy, in order for business to be conducted
at the Meeting. The required quorum for the Meeting is the presence in person or by proxy of the holders of a majority of the
issued and outstanding shares of our Common Stock entitled to vote thereon at the close of business on the Record Date. Since
there was an aggregate of 40,405,496 shares of Common Stock issued and outstanding and entitled to vote thereon as of the Record
Date, a quorum will be present for the Meeting if an aggregate of at least 20,202,749 shares of Common Stock are present in person
or by proxy at the Meeting.
Broker
“non-votes” are included for the purposes of determining whether a quorum is present at the Meeting. A broker “non-vote”
occurs when a nominee holder, such as a brokerage firm, bank or trust company, holding shares of record for a beneficial owner,
does not vote on a particular proposal because the nominee holder does not have discretionary voting power with respect to that
item and has not received voting instructions from the beneficial owner.
How
many votes are required to approve each proposal?
The
approval of each proposal set forth herein requires the affirmative vote of the holders of a majority in voting power of the outstanding
shares of Common Stock, or in other words, each proposal must be approved by the affirmative vote of the holders of 20,202,749
shares of Common Stock. For purposes of each proposal, abstentions and broker “non-votes” will have the same effect
as a vote "against" the Proposal.
Who
is paying for this proxy solicitation process?
The
enclosed proxy is solicited on behalf of our Board, and we are paying for the entire cost of the proxy solicitation process. Copies
of the proxy material will be given to banks, brokerage houses and other institutions that hold shares that are beneficially owned
by others. Upon request, we will reimburse these banks, brokerage houses and other institutions for their reasonable out-of-pocket
expenses in forwarding these proxy materials to the stockholders who are the beneficial owners. Original solicitation of proxies
by mail will be made by Issuer Direct Corporation, who we have engaged to help us solicit proxies. We will pay the applicable
fees to Issuer Direct Corporation, which we anticipate will be approximately $3,200 plus expenses. This solicitation may be supplemented
by telephone, facsimile or personal solicitation by our directors, officers, or other employees.
How
can I find out the results of the voting at the Meeting?
We
will announce preliminary voting results at the Meeting and publish final results in a Current Report on Form 8-K, which will
be filed with the SEC within four business days after the Meeting.
How
can stockholders communicate with our Board?
Company
stockholders who want to communicate with our Board may write to our Corporate Secretary at OxySure Therapeutics, Inc., Attention:
Secretary, 10880 John W. Elliott Drive, Suite 600, Frisco, TX 75033.
Your
letter should indicate that you are a Company stockholder. Depending on the subject matter, our Corporate Secretary will: (i)
forward the communication to the appropriate officer of the Company; (ii) attempt to handle the inquiry directly, for example
when the request is for information about the Company or is a stock-related matter; or (iii) not forward the communication
if it is primarily commercial in nature or if it relates to an improper or irrelevant topic. At each Board meeting, a member of
management will present a summary of all communications received since the last meeting that were not forwarded to the director
to whom they were addressed, and shall make those communications available to our Board upon request.
PROPOSAL
AMENDMENT
TO THE COMPANY’S ARTICLES OF INCORPORATION
TO
EFFECTUATE THE REVERSE STOCK SPLIT
The
Reverse Stock Split
At
a special meeting of our stockholders on September 15, 2015, our stockholders approved a proposal authorizing an amendment to
the Company’s Articles of Incorporation to effect a reverse stock split of our Common Stock, at a specific ratio, within
a range of 1-for-2 and 1-for-100 shares, to be determined by our Board of Directors in its sole discretion and effected, if at
all, within one year from the date of such special meeting (the “Approved Split”). The Company has not yet implemented
the Approved Split, and due in part to current market conditions, the Company believes that having the flexibility to execute
the Approved Split in one or more steps will provide it with the best opportunity to accomplish the intended purpose of the Approved
Split. Such flexibility would allow the Company to consider and react appropriately to market conditions and other factors and,
if in the best interests of the Company and its stockholders, gradually implement the Approved Split. Accordingly, on February
25, 2016, the Board unanimously authorized and approved the implementation of the Approved Split in one or more steps. Specifically,
the Board authorized and approved one or more amendments to our Articles of Incorporation to effect one or more reverse stock
splits of our Common Stock at specific ratios, the cumulative ratio to be within a range of 1-for-2 and 1-for-100 shares (the
“Proposed Split” and each, a “Reverse Split”), the actual ratio(s) to be determined by the Board in its
sole discretion, and to be effected, if at all, no later than September 14, 2016. The Proposed Split would occur, if at all, in
lieu of (rather than in addition to) the Approved Split. However, if the Proposed Split is not approved by stockholders, the Board
may still determine, in its sole discretion, to effect the Approved Split as currently authorized. Further, the Board may determine,
in its sole discretion, to effect the Approved Split prior to the Special Meeting contemplated in connection with the Proposed
Split.
Because
the cumulative ratio of the Proposed Split would fall within the same range applicable to the Approved Split, implementation of
the Proposed Split would result in approximately the same number of shares outstanding as contemplated by the Approved Split,
subject to the number of shares actually outstanding each time a Reverse Split is implemented, and further subject to adjustments
for fractional shares, as described below under “Proposal ― Amendment to the Company’s Articles of Incorporation
to Effectuate the Reverse Stock Split ― Treatment of Fractional Shares.” For example, a 1-for-100 Reverse Split pursuant
to the Approved Split would be equivalent to a 1-for-50 Reverse Split followed by a 1-for-2 Reverse Split pursuant to the Proposed
Split, which would exhaust the maximum authorization of the Proposed Split.
The
Proposed Split would be implemented, if at all, within the same timeframe as the Approved Split (i.e., within one year from the
date of the September 15, 2015 special meeting, or no later than September 14, 2016).
A
Reverse Split will reduce the number of outstanding shares of our Common Stock by reclassifying and converting all outstanding
shares of our Common Stock into a proportionately fewer number of shares of Common Stock. A Reverse Split will also result in
a relative increase in the available number of authorized but unissued shares of our Common Stock because the number of shares
authorized for issuance is otherwise unchanged by a Reverse Split. Each stockholder’s proportionate ownership of the issued
and outstanding shares of our Common Stock would remain the same, however, except for minor changes that may result from additional
shares issued in connection with fractional shares. With the exception of adjustments for those stockholders with fractional shares,
a Reverse Split will not affect any stockholder’s proportional equity interest in the Company in relation to other stockholders
or rights, preferences, privileges or priorities. Outstanding shares of new Common Stock resulting from a Reverse Split will remain
fully paid and non-assessable.
The
text of the proposed amendment to our Articles of Incorporation to effect a Reverse Split is included as Appendix A to this Proxy
Statement.
The
Purpose and Reason for the Reverse Stock Split
The
purpose of the Proposed Split remains the same as the purpose of the Approved Split. However, the ability to effect the Proposed
Split in one or more steps will provide the Company with the flexibility to strategically implement the Approved Split gradually
if the Board determines that such a gradual approach is desirable in light of current market conditions and other factors, as
described below under “Proposal ― Amendment to the Company’s Articles of Incorporation to Effectuate the Reverse
Stock Split ― Board Discretion to Implement One or More Reverse Splits.”
The
Company’s Common Stock is currently quoted on the OTCQB under the symbol “OXYS.” We believe that the Proposed
Split will result in a higher market price per share of our Common Stock, which we believe will enable the Company to attract
additional interest in our Common Stock from the investment community, including market makers. Numerous broker-dealers and investment
bankers require that a company’s common stock have a minimum public trading price before they will agree to make a market
in such common stock. We believe that the anticipated increase in market price per share of our Common Stock resulting from the
Proposed Split will help the Company satisfy eligibility requirements to list its Common Stock on The Nasdaq Capital Market (“Nasdaq”).
We further believe that by listing our Common Stock on Nasdaq, we will enhance our visibility and commercial credibility, making
our Common Stock more attractive to a greater number of potential investors, which would help the Company raise capital and further
its goal of growth through mergers and acquisitions and international expansion.
We
cannot assure you that we will be successful in listing our Common Stock on Nasdaq or that, if listed, such listing would have
the effects described in the immediately preceding paragraph. To obtain an initial listing of common stock on Nasdaq, Nasdaq requires
that the bid price or closing price per share of common stock in the initial listing be at least $4.00 or $3.00, respectively,
depending on and in addition to certain other initial listing requirements. The last reported sale price of our Common Stock on
February 25, 2016 was $.12. While we anticipate that the Proposed Split will result in an increase in the market price per share
of our Common Stock, which would help our Common Stock satisfy Nasdaq’s required market price per share rules, there is
no guarantee that the resulting market price per share of our Common Stock will satisfy Nasdaq listing requirements, that it will
rise in proportion to the reduction in the number of shares of our Common Stock outstanding, or that it will rise at all. It is
possible that the Proposed Split will have no lasting impact on the market price per share of our Common Stock. Other factors,
such as our financial results, market conditions and the market perception of our business may adversely affect the market price
per share of our Common Stock. In addition, we cannot guarantee that we will meet all of the additional Nasdaq listing requirements.
Board
Discretion to Implement One or More Reverse Splits
If
this proposal is approved by the Company’s stockholders, the Board will have the authority, in its sole determination without
any further action necessary by the stockholders, to effect one or more Reverse Splits within the range set forth above, as determined
by the Board. The Board may, in its sole determination, choose to not effect any Reverse Split, including the Approved Split.
The Board believes that this discretionary authority provides the Board with maximum flexibility to react to prevailing market
conditions and future changes to the market price of our Common Stock and, therefore, better enables it to act in the best interests
of the Company. In exercising its discretion, the Board may consider the following factors:
| ● | the
ratio that would result in the greatest overall reduction in administrative costs; |
| ● | the
historical trading price and trading volume of the Company’s Common Stock; |
| ● | the
then prevailing trading price and trading volume of the Company’s Common Stock
and the anticipated impact of a Reverse Split on the trading market for the Company’s
Common Stock; and |
| ● | the
prevailing general market and economic conditions. |
At
the close of business on the February 19, 2016, the Company had approximately 40,405,496 shares of Common Stock issued and outstanding.
For illustrative purposes only, assuming a 1-for-10 split ratio, the Company would have approximately 4,040,550 shares of Common
Stock issued and outstanding (without giving effect to the treatment of fractional shares) following such Reverse Split. Assuming
a second Reverse Split with a 1-for-2 split ratio, and assuming no additional shares of Common Stock were issued between the first
Reverse Split and the second Reverse Split, the Company would have approximately 2,020,275 shares of Common Stock issued and outstanding
(without giving effect to the treatment of fractional shares). The two Reverse Splits would have a cumulative ratio of 1-for-20
shares of Common Stock. The actual number of shares of Common Stock outstanding after giving effect to a Reverse Split will depend
on the split ratio(s) ultimately selected by the Board and the number of shares of Common Stock outstanding at the time a Reverse
Split is effected. The Company does not expect a Reverse Split to have any economic effect on stockholders, warrant holders, debt
holders or holders of options, except to the extent a Reverse Split results in fractional shares as discussed below under “Proposal
― Amendment to the Company’s Articles of Incorporation to Effectuate the Reverse Stock Split ― Treatment of
Fractional Shares.”
Procedure
for Effecting a Reverse Split
If
the Board decides to implement a Reverse Split, the Board will choose the specific split ratio(s), within the cumulative range
of 1-for-2 and 1-for-100, and file a Certificate of Amendment to our Articles of Incorporation, the form of which is attached
hereto as Appendix A, with the Secretary of State of the State of Delaware to effect a Reverse Split. A Reverse Split will become
effective at such time as the applicable Certificate of Amendment is filed with the Secretary of State of the State of Delaware
or at such later time as is specified therein. All shares of our Common Stock that were issued and outstanding immediately prior
thereto would automatically be converted into new shares of our Common Stock based on the Split Ratio.
As
soon as practicable after the effective date of a Reverse Split, stockholders of record on the applicable record date would receive
a letter from our transfer agent asking them to return the outstanding certificates representing pre-split shares of Common Stock,
which would be cancelled upon receipt by our transfer agent, and new certificates representing the post-split shares of Common
Stock would be sent to each of our stockholders. We will bear the costs of the issuance of the new stock certificates. Stockholders
who hold uncertificated shares, either as direct or beneficial owners, will be required to request their holdings in certificate
form from their brokers or banks and upon receipt, these certificates are to be sent to our transfer agent for replacement certificates
representing the post-split shares of Common Stock.
Beginning
after the effectiveness of a Reverse Split, each certificate representing shares of pre-split Common Stock will be deemed for
all corporate purposes to evidence ownership of post-split Common Stock.
STOCKHOLDERS
SHOULD NOT DESTROY ANY PRE-SPLIT STOCK CERTIFICATE AND SHOULD NOT SUBMIT ANY CERTIFICATES UNLESS AND UNTIL THEY ARE REQUESTED
TO DO SO.
Disadvantages
of a Reverse Stock Split
Even
though our Board believes that the potential advantages of the Proposed Split outweigh any disadvantages that might result, the
following are the possible disadvantages of any Reverse Split:
| (a) | A
Reverse Split may leave certain stockholders with one or more “odd lots,”
which are stock holdings in amounts of less than 100 shares of our Common Stock. These
odd lots may be more difficult to sell than shares of our Common Stock in even multiples
of 100. In addition, brokerage commissions and other costs of transactions in odd lots
are generally somewhat higher than the costs of transactions in “round lots”
of even multiples of 100 shares. |
| (b) | Because
a Reverse Split would result in an increased number of authorized but unissued shares
of Common Stock, it may be construed as having an anti-takeover effect. For example,
it may be possible for the Board to delay or impede a takeover or transfer of control
of the Company by causing the additional authorized but unissued shares to be issued
to holders who might side with the Board in opposing a takeover bid that the Board determines
is not in our best interests or the best interests of our stockholders. The increase
in the number of authorized but unissued shares of Common Stock may therefore have the
effect of discouraging unsolicited takeover attempts. By potentially discouraging initiation
of unsolicited takeover attempts, the increase in the number of authorized but unissued
shares of Common Stock may limit the ability of our stockholders to dispose of their
shares at the higher price generally available in takeover attempts or that otherwise
may be available under a merger proposal. The increase in the number of authorized but
unissued shares of Common Stock may have the effect of permitting our current members
of management, including our current Directors, to retain their position, and place them
in a better position to resist changes that stockholders may wish to make if they are
dissatisfied with the conduct of our business. However, the Board is not aware of any
attempt to take control of the Company, and the Board did not propose the Proposed Split
with the intent that the increase in the number of authorized but unissued shares of
Common Stock be utilized as a type of anti-takeover device. |
| (c) | The
increased number of authorized but unissued shares of our Common Stock could be issued
by the Board without further stockholder approval, which could result in dilution to
the percentage of stock ownership or voting power of our current stockholders. |
Effect
of the Reverse Stock Split
As
of February 19, 2016, there were 40,405,496 shares of Common Stock issued and outstanding. After the Proposed Split, there will
be approximately 404,055 to 20,202,749 shares of Common Stock issued and outstanding, the exact number to be determined after
effectiveness of the Proposed Split based on the actual ratios of all Reverse Splits, the number of shares of Common Stock outstanding
each time a Reverse Split occurs, and the rounding up of fractional shares to the nearest whole share, as discussed below under
“Proposal One ― Amendment to the Company’s Articles of Incorporation to Effectuate the Reverse Stock Split ―
Treatment of Fractional Shares.”
Following
the effectiveness of a Reverse Split, all of your shares of Common Stock will be represented by a smaller amount of shares. If
a Reverse Split is based on a 1-for-2 ratio, every 2 shares of Common Stock outstanding immediately prior to the effectiveness
of such Reverse Split, without any action on the part of the stockholders, will represent one share of Common Stock. If a Reverse
Split is based on a 1-for-100 ratio, every 100 shares of Common Stock outstanding immediately prior to the effectiveness of such
Reverse Split, without any action on the part of the stockholders, will represent one share of Common Stock. These numbers could
vary if the Board chooses ratios inside the 1-for-2 to 1-for-100 range.
Subject
to the provisions for elimination of fractional shares, consummation of a Reverse Split will not result in a change in the relative
equity position or voting power of the stockholders. In addition, there will be no change to the rights and preferences of the
outstanding shares of Common Stock upon consummation of a Reverse Split.
Effect
of the Reverse Stock Split on the Company’s Voting Stock Option Plan, Options, Restricted Stock Awards and Units, Warrants
and Convertible or Exchangeable Securities
Based
upon the split ratio(s) determined by the Board, proportionate adjustments are generally required to be made to the per share
conversion price of convertible or exchangeable securities, such as preferred stock. In addition, based upon the split ratio(s)
determined by the Board, proportionate adjustments are generally required to be made to the per share exercise price and the number
of shares issuable upon the exercise of all outstanding options and warrants entitling the holders to purchase, exchange for,
or convert into, shares of Common Stock. This would result in approximately the same aggregate price being paid under such options
and warrants upon exercise, and approximately the same value of shares of Common Stock being delivered upon such exercise, immediately
following a Reverse Split as was the case immediately preceding such Reverse Split. The number of shares deliverable upon settlement
or vesting of restricted stock awards will be similarly adjusted, subject to our treatment of fractional shares. The number of
shares reserved for issuance pursuant to these securities will be proportionately based upon the split ratio(s) determined by
the Board, subject to our treatment of fractional shares.
Accounting
Matters
A
Reverse Split will not affect the par value of our Common Stock. As a result, on the effective date of a Reverse Split, the stated
capital on the Company’s consolidated balance sheet attributable to the Common Stock will be reduced based on the split
ratio(s) and the additional paid-in capital account will be increased by a corresponding amount. Reported per share net income
or loss will be higher because there will be fewer shares of Common Stock outstanding.
Effective
Date
A
Reverse Split would become effective upon the filing of a Certificate of Amendment to our Articles of Incorporation with the Secretary
of State of the State of Delaware or at such later date as is specified in such filing. On the effective date, shares of Common
Stock issued and outstanding, in each case, immediately prior thereto, will be combined and converted, automatically and without
any action on the part of the stockholders, into new shares of Common Stock in accordance with the applicable split ratio determined
by the Board within the limits set forth in this Proxy Statement.
Treatment
of Fractional Shares
No
fractional shares will be issued if, as a result of a Reverse Split, a registered stockholder would otherwise become entitled
to a fractional share because he or she holds a number of shares not evenly divisible by the applicable split ratio. Instead,
such stockholder who otherwise would be entitled to receive a fractional share will automatically be entitled to receive an additional
share of Common Stock. In other words, any fractional share will be rounded up to the nearest whole number.
Federal
Income Tax Consequences of the Reverse Stock Split
The
following discussion summarizes material U.S. federal income tax consequences relating to the participation in a Reverse Split
by a U.S. stockholder that holds his, her or its shares of Common Stock as a capital asset. This discussion is based on the provisions
of the Internal Revenue Code of 1986, as amended (the “Code”), final, temporary and proposed U.S. Treasury regulations
promulgated thereunder and current administrative rulings and judicial decisions, all as in effect as of the date hereof. All
of these authorities may be subject to differing interpretations or repealed, revoked or modified, possibly with retroactive effect,
which could materially alter the tax consequences set forth herein.
For
purposes of this summary, a “U.S. stockholder” refers to a beneficial owner of Common Stock who is any of the following
for U.S. federal income tax purposes: (i) a citizen or resident of the United States; (ii) a corporation (or entity treated as
a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United States, any state
thereof, or the District of Columbia; (iii) a partnership (or entity treated as a partnership for U.S. federal income tax purposes)
organized in or under the laws of the United States, any state thereof or the District of Columbia; (iv) an estate the income
of which is subject to U.S. federal income taxation regardless of its source; or (v) a trust if (1) its administration is subject
to the primary supervision of a court within the United States and one or more U.S. persons have the authority to control all
of its substantial decisions, or (2) it has a valid election in effect under applicable U.S. Treasury regulations to be treated
as a U.S. person. A non-U.S. holder of Common Stock is a stockholder who is not a U.S. stockholder.
This
summary does not represent a detailed description of the U.S. federal income tax consequences to a stockholder in light of his,
her or its particular circumstances. In addition, it does not purport to be complete and does not address all aspects of U.S.
federal income taxation that may be relevant to stockholders in light of their particular circumstances or to any stockholder
that may be subject to special tax rules, including, without limitation: (1) stockholders subject to the alternative minimum tax;
(2) banks, insurance companies, or other financial institutions; (3) tax-exempt organizations; (4) dealers in securities
or commodities; (5) regulated investment companies or real estate investment trusts; (6) traders in securities that
elect to use a mark-to-market method of accounting for their securities holdings; (7) U.S. stockholders whose “functional
currency” is not the U.S. dollar; (8) persons holding Common Stock as a position in a hedging transaction, “straddle,”
“conversion transaction” or other risk reduction transaction; (9) persons who acquire shares of Common Stock
in connection with employment or other performance of services; (10) dealers and other stockholders that do not own their
shares of Common Stock as capital assets; (11) U.S. expatriates, (12) foreign persons; (13) resident alien individuals;
or (14) stockholders who directly or indirectly hold their Common Stock in an entity that is treated as a partnership for U.S.
federal income tax purposes. Moreover, this description does not address the U.S. federal estate and gift tax, alternative minimum
tax, or other tax consequences of a Reverse Split, including state, local and non-U.S. tax consequences.
There
can be no assurance that the Internal Revenue Service (the “IRS”) will not take a contrary position to the tax consequences
described herein or that such position will be sustained by a court. In addition, U.S. tax laws are subject to change, possibly
with retroactive effect, which may result in U.S. federal income tax considerations different from those summarized below. No
opinion of counsel or ruling from the IRS has been obtained with respect to the U.S. federal income tax consequences of the Reverse
Split. This discussion is for general information only and is not tax advice. All stockholders should consult their own tax advisors
with respect to the U.S. federal, state, local and non-U.S. tax consequences of a Reverse Split.
Based
on the assumption that a Reverse Split will constitute a tax-free reorganization within the meaning of Section 368(a)(1)(E) of
the Code, and subject to the limitations and qualifications set forth in this discussion, the following U.S. federal income tax
consequences should result from a Reverse Split:
| ● | a
stockholder should not recognize gain or loss in a Reverse Split; |
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aggregate tax basis of the post-split shares of Common Stock should be equal to the aggregate
tax basis of the pre-split shares of Common Stock; and |
| ● | the
holding period of the post-split shares of Common Stock should include the holding period
of the pre-split shares of Common Stock. |
As
discussed above, fractional shares will not be issued in connection with any Reverse Split. Rather, stockholders entitled to receive
fractional shares because they hold a number of shares not evenly divisible by the applicable split ratio will be entitled to
receive an additional fraction of a share of Common Stock to round up to the next whole share. The U.S. federal income tax consequences
of the receipt of such an additional fraction of a share of Common Stock is unclear. If the receipt of such an additional fraction
of a share of Common Stock is taxable, however, any related tax liability should be small.
THE
PRECEDING DISCUSSION IS INTENDED ONLY AS A SUMMARY OF MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES OF A REVERSE SPLIT AND DOES
NOT PURPORT TO BE A COMPLETE ANALYSIS OR DISCUSSION OF ALL POTENTIAL TAX EFFECTS RELEVANT THERETO. YOU SHOULD CONSULT YOUR OWN
TAX ADVISORS AS TO THE PARTICULAR FEDERAL, STATE, LOCAL, FOREIGN AND OTHER TAX CONSEQUENCES OF A REVERSE SPLIT IN LIGHT OF YOUR
SPECIFIC CIRCUMSTANCES.
No
Appraisal Rights
Under
the DGCL, stockholders are not entitled to rights of appraisal with respect to the proposed amendment to our Articles of Incorporation
to effect a Reverse Split, and we will not independently provide our stockholders with any such right.
Vote
Required for Approval
The
affirmative vote of the holders of a majority of the outstanding shares of our Common Stock entitled to vote thereon as of the
Record Date is required to approve this proposal. Abstentions and broker non-votes will have the same effect as shares voted against
this proposal.
THE
BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE “FOR” THIS PROPOSAL.
EFFECTIVENESS
OF AMENDMENTS
An
amendment to our Articles of Incorporation to effect a Reverse Split will become effective at such time as the Company files the
applicable Certificate of Amendment to its Articles of Incorporation with the Secretary of State of the State of Delaware or at
such later time as specified therein. The Company reserves the right, upon notice to its stockholders, to abandon or modify an
amendment at any time prior to the effectiveness of such amendment.
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
AND
RELATED STOCKHOLDER MATTERS
The
following table sets forth, as of February 19, 2016, certain information concerning the beneficial ownership of the Common Stock
held by our executive officers and directors and each person known to us to own more than 5% of our outstanding Common Stock:
| Name and Address of Beneficial Owner(1) | |
Amount and Nature of Beneficial Ownership(2) | | |
Percentage of Common Stock Owned/Voting Power | |
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| Executive Officers | |
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| Julian T. Ross, Chairman, CEO, President, CFO(3) | |
| 17,530,573 | | |
| 40.94 | % |
| Clark Hood, VP Resuscitation Sales | |
| 62,500 | | |
| * | |
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| Directors | |
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| Jeremy M. Jones | |
| 364,292 | | |
| * | |
| Thomas Cox | |
| 67,555 | | |
| * | |
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| All Officers and Directors as a Group (4 People) | |
| 18,024,920 | | |
| 42.16 | % |
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| 5% Stockholders | |
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| JTR Investments, Limited(4) | |
| 14,040,761 | | |
| 34.75 | % |
| * | The
amount of beneficial ownership represents less than 1% of the outstanding Common Stock. |
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| (1) | Unless
otherwise noted, the address for each beneficial owner is c/o OxySure Therapeutics, Inc.,
10880 John W. Elliott Drive, Suite 600, Frisco, Texas 75033. |
| | | |
| (2) | Except
as otherwise indicated, we believe that the beneficial owners of Common Stock listed
above, based on information furnished by such owners, have sole investment and voting
power with respect to such shares, subject to community property laws where applicable.
Beneficial ownership is determined in accordance with the SEC rules and generally includes
voting or investment power with respect to securities. Shares of Common Stock subject
to options or warrants currently exercisable, or exercisable within 60 days, are deemed
outstanding for purposes of computing the beneficial ownership percentage of the person
holding such options or warrants, but they are not deemed outstanding for purposes of
computing the beneficial ownership percentage of any other person. |
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| | (3) | Includes
400,000 shares of Common Stock held by The Ross Family Trust u/t/a dated December 1999;
14,040,761 shares of common stock held by JTR Investments, Limited; 172,324 shares of
common stock; 500,000 restricted stock units; and 2,417,488 shares of Common Stock issuable
upon exercise of stock options expiring on dates ranging from 5/15/2016 through 12/15/2022. |
| (4) | Our
Chairman, President, CEO and CFO, Julian T. Ross, has sole voting and dispositive power
over the shares held by JTR Investments, Limited. |
STOCKHOLDER
PROPOSALS
No
stockholder entitled to vote has transmitted any proposal to be acted upon by the Company.
The
Board has not determined the date on which an annual meeting of stockholders will be held. Stockholders may submit proposals on
matters appropriate for stockholder action at annual meetings in accordance with the rules and regulations adopted by the SEC.
Any proposal that an eligible stockholder desires to have included in our proxy statement and presented at an annual meeting of
stockholders held by us will be included in our proxy statement and related proxy card if it is received by us a reasonable time
before we begin to print and send our proxy materials and if it complies with SEC rules regarding inclusion of proposals in proxy
statements. In order to avoid controversy as to the date on which we receive a proposal, it is suggested that any stockholder
who wishes to submit a proposal submit such proposal by Certified Mail, Return Receipt Requested.
Other
deadlines apply to the submission of stockholder proposals for an annual meeting of stockholders that are not required to be included
in our proxy statement under SEC rules. With respect to these stockholder proposals, a stockholder’s notice must be received
by us a reasonable time before we begin to print and send our proxy materials. The form of proxy distributed by the Board of Directors
for such meeting will confer discretionary authority to vote on any such proposal not received by such date. If any such proposal
is received by such date, the proxy statement for the meeting will provide advice on the nature of the matter and how we intend
to exercise our discretion to vote on each such matter if it is presented at that meeting.
OTHER
INFORMATION
Interest
of Certain Persons in Matters to be Acted Upon
No
director, officer, nominee for election as a director, associate of any director, officer or nominee or any other person has any
substantial interest, direct or indirect, by security holdings or otherwise, in any of the matters described herein, other than
the interests held by such persons through their respective beneficial ownership of shares of our Common Stock set forth above
under “Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.”
Other
Matters
We
do not know of any matters to be presented at the Meeting other than that set forth in this Proxy Statement. However, if any other
matters come before the Meeting, the proxy holders will vote the shares represented by any proxy granted in their favor in such
manner as the Board may recommend or, in the absence of such a recommendation, the proxy holders’ discretion.
Delivery
of Documents to Stockholders Sharing an Address
Only
one copy of this Proxy Statement is being delivered to two or more stockholders who share an address unless we have received contrary
instruction from one or more of such stockholders. We will promptly deliver, upon written or oral request, a separate copy of
the Proxy Statement to a stockholder at a shared address to which a single copy of the Proxy Statement was delivered. If you would
like to request additional copies of the Proxy Statement, if in the future you would like to receive multiple copies of proxy
statements, information statements or annual reports, or if you are currently receiving multiple copies of these documents and
would like to receive only a single copy, please so instruct us by calling or writing to our corporate Secretary at the Company’s
executive offices at the telephone number or address specified above.
Additional
Information
The
Company’s principal executive offices are located at 10880 John W. Elliott Drive, Suite 600, Frisco, Texas 75033. The Company’s
telephone number is 972-294-6450.
We
are subject to the information and reporting requirements of the Exchange Act, and in accordance therewith, we file reports and
other information, including annual and quarterly reports on Form 10-K and Form 10-Q, respectively, with the SEC. Reports and
other information we file with the SEC can be inspected and copied at the SEC’s Public Reference Room, located at the SEC’s
headquarters at 100 F Street NE, Washington, DC 20549. You may obtain information on the operations of the SEC’s public
reference room by calling the SEC at 1-800-SEC-0330. You may also obtain copies of reports and other information we file with
the SEC on the SEC’s website at www.sec.gov.
APPENDIX
A
CERTIFICATE
OF AMENDMENT
TO
THE ARTICLES OF INCORPORATION
OF
OXYSURE
THERAPEUTICS, INC.
OxySure
Therapeutics, Inc. (the “Company”), organized and existing under and by virtue of the Delaware General Corporation
Law, does hereby certify:
FIRST:
That the Board of Directors (the “Board”) of the Company adopted a proposed amendment to the Company’s
Articles of Incorporation to effect a reverse stock split, declaring said amendment to be advisable.
The
proposed amendment reads as follows:
Article
IV is hereby amended by adding the following paragraph to the end of Section 4.01:
Upon
the effectiveness (the “Effective Time”) of this Certificate of Amendment to the Articles of Incorporation
of the Corporation, every ___ shares of Common Stock issued and outstanding immediately prior to the Effective Time will be automatically
combined and converted into one share of Common Stock of the Corporation as has been determined by the board of directors in its
sole discretion and publicly announced by the board of directors at least ten days prior to effectiveness of this Certificate
of Amendment (“Reverse Split No. __”). Notwithstanding the foregoing, no fractional shares shall be issued
in connection with Reverse Split No. __. Shares shall be rounded up to the nearest whole share. Each certificate that immediately
prior to the Effective Time represented shares of Common Stock (“Old Certificates”), shall thereafter and without
the necessity for presenting the same represent that number of shares of Common Stock into which the shares of Common Stock represented
by the Old Certificates shall have been combined, subject to the rounding up of any fractional share interests as described above.
SECOND:
That, pursuant to a resolution of its Board of Directors, a special meeting of the stockholders of OxySure Therapeutics, Inc.
was duly called and held upon notice in accordance with Section 222 of the Delaware General Corporation Law, at which meeting
the necessary number of shares as required by statute were voted in favor of granting the Board of Directors the authority to
amend the Articles of Incorporation to provide for one or more reverse stock splits and the Board of Directors subsequently approved
a reverse stock split with a ratio of 1-for-___.
THIRD:
That this amendment was duly adopted in accordance with the provisions of Section 242 of the Delaware General Corporation
Law.
IN
WITNESS WHEREOF, the Company has caused this certificate to be signed this __ day of _______________, 2016.
OXYSURE
THERAPEUTICS, INC.
THIS
PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
SPECIAL
meeting OF STOCKHOLDERS – March [ ], 2016 at [ ] cst |
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undersigned, a stockholder of OxySure Therapeutics, Inc. (the “Company”), hereby revoking any proxy heretofore
given, does hereby appoint Julian T. Ross, and each of them, with power to act without the other and with power of substitution,
as proxies for and in the name of the undersigned to attend the 2016 special meeting of stockholders of the Company (the
“Meeting”) to be held at the Company’s principal executive offices, located at 10880 John W. Elliott Drive,
Suite 600, Frisco, TX 75033, on April [ ], 2016 at [ ]
local time, or at any adjournment or postponement thereof, and there to vote, as designated
below. |
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INSTRUCTIONS |
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you vote by phone, fax or internet, please DO NOT mail your proxy card. |
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MAIL: |
Please
mark, sign, date, and return this Proxy Card promptly using the enclosed envelope. |
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FAX: |
Complete
the reverse portion of this Proxy Card and Fax to 202-521-3464. |
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INTERNET: |
https://www.iproxydirect.com/OXYS |
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PHONE: |
1-866-752-VOTE(8683) |
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SPECIAL MEETING OF THE STOCKHOLDERS OF
OXYSURE THERAPEUTICS, INC. |
PLEASE COMPLETE, DATE, SIGN AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE.
PLEASE MARK YOUR VOTE IN BLUE OR BLACK INK AS
SHOWN HERE: ý |
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| PROXY SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS |
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| Proposal 1 |
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FOR |
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To authorize one or more amendments to the Company’s Articles of Incorporation to effect one or more reverse stock splits of the Company’s common stock, par value $0.0004, at specific ratios, the cumulative ratio to be within a range of 1-for-2 and 1-for-100 shares, to be determined by the Company’s Board of Directors in its sole discretion and effected, if at all, no later than September 14, 2016. |
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MARK “X” HERE IF YOU PLAN TO ATTEND THE MEETING: ¨ |
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MARK
HERE FOR ADDRESS CHANGE ¨
New Address (if applicable):
__________________________
__________________________
__________________________
IMPORTANT:
Please sign exactly as your name or names appear on this Proxy. When shares are held jointly, each holder should sign. When
signing as executor, administrator, attorney, trustee or guardian, please give full title as such. If the signer is a corporation,
please sign full corporate name by duly authorized officer, giving full title as such. If signer is a partnership, please sign
in partnership name by authorized person.
Dated: ________, 2016 |
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(Print Name of Stockholder and/or Joint Tenant) |
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